EMPLOYMENT AGREEMENT
Exhibit 10.1(a)
THIS AGREEMENT made as of this 28th day of June 2006, by and between THE BON-TON STORES, INC.,
a Pennsylvania corporation (the “Company”), and Xxxxxxx Xxxxx (“Employee”).
W I T N E S S E T H:
WHEREAS, the Company has offered Employee continued employment and Employee has accepted the
Company’s offer commencing on the Effective Date (as hereinafter defined).
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein and
intending to be legally bound hereby, the Company and Employee agree as follows:
1. Position and Responsibilities.
(a) The Company hereby employs Employee and Employee hereby accepts employment by the Company
as the Company’s Executive Vice President, CPS Stores. Employee shall have responsibilities for
the Company’s CPS Stores and Visual matters and/or such other responsibilities commensurate with
those of Executive Vice President, CPS Stores, and shall report either to the President and Chief
Executive Officer of the Company or such other direct report as the President and Chief Executive
Officer may designate.
(b) Throughout the term of this Agreement, Employee shall devote his entire working time,
energy, attention, skill and best efforts to the affairs of the Company and to the performance of
his duties hereunder in a manner that will faithfully and diligently further the business and
interests of the Company. Employee may not, directly or indirectly, do any work for or on behalf
of a competitor or any other company while employed by the Company.
However, nothing herein
contained shall be deemed to prevent or limit the right of Employee to invest any of his personal
funds in less than one percent of any class or series of the equity
securities of any entity provided such equity securities are traded on a national securities
exchange or quoted in an automated inter-dealer quotation system, nor shall this clause be
construed as preventing Employee from investing his assets in such other form or manner as will not
require any services on the part of the Employee in, and will not permit the control by the
Employee of any aspect of, the operation or the affairs of entities (or affiliates of such
entities) in which such investments are made. Approval of board memberships and participation in
lectures and teaching activities will be at the discretion of the Chief Executive Officer; however,
such approval will not be unreasonably withheld, provided that such activities do not significantly
interfere with Employee’s duties under this Agreement.
(c) Employee shall not obtain goods or services or otherwise deal on behalf of the Company
with any business or entity in which Employee or a member of his immediate family has a financial
interest or from which Employee or a member of his immediate family may derive a financial benefit
as a result of such transaction, except that this prohibition shall not apply to any entity whose
equity securities are traded on a national securities exchange or quoted in an automated
inter-dealer quotation system provided that neither Employee nor any member of his immediate family
owns one percent or more of any class or series of the outstanding capital stock or other
securities of such entity.
2. Term of Agreement. Employee’s employment hereunder, shall commence immediately
upon execution by both the Company and Employee (“Effective Date”), and shall continue through and
terminate on January 31, 2009, unless sooner terminated in accordance with Paragraph 8 below.
3. Place of Performance. Employee shall be based at the office of the Company in
Milwaukee, Wisconsin, except for travel required for Company business.
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4. Compensation.
(a) Salary. Employee shall receive a Base Salary (“Base Salary”) at the annual rate
of $425,000. This Base Salary, less taxes and normal deductions, shall be paid to Employee in
substantially equal installments in accordance with the Company’s regular executive payroll
practices in effect from time to time. The Base Salary and Employee’s performance may be reviewed
from time to time during the term of this Agreement by the Company to ascertain whether, in the
Company’s sole discretion, such Base Salary should be increased, and once increased, such Base
Salary shall not be decreased. The first such salary and performance review shall occur in 2007.
(b) Annual Bonus. Employee will participate in The Bon-Ton Stores, Inc. Cash Bonus
Plan (“Cash Bonus Plan”) in accordance with its terms and conditions as it may be amended in
accordance with its provisions or such other annual bonus plan as may be established by the
Company. For each of the fiscal years of the Company during the Term, Employee shall be eligible
to earn a bonus, with the following parameters: a threshold bonus of 33.75% of Employee’s Base
Salary; a target bonus of 45% of Employee’s Base Salary; and a maximum bonus of 67.5% of Employee’s
Base Salary. If earned, one bonus will be paid depending on the level of achievement with respect
to performance measures determined for each of the Company’s fiscal years by the Human Resources
and Compensation Committee (“HRCC”) of the Company’s Board of Directors. The HRCC shall retain
discretion with respect to this bonus as is provided under the terms of the Cash Bonus Plan. To
the extent reasonably practicable, the annual bonus shall be computed within 90 days following the
close of the Company’s fiscal year and paid within 30 days of its computation. Employee must be
employed on the last day of the Company’s fiscal year to receive a bonus.
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(c) Stock Options. The Company agrees that it has already provided an option or
options to purchase shares of the Company’s common stock to the Employee, which options remain in
effect without change. The Employee may receive one or more options in the future at the
discretion of the Company.
(d) Allowances. The Company shall provide Employee with $6,200 per year, payable
monthly or in accordance with Company’s current payroll practices as may be modified from time to
time, as an automobile allowance. The Company shall reimburse Employee on a one-time basis for up
to $2,000 in attorney’s fees incurred for the review and negotiation of this Agreement.
5. Medical Insurance. Employee and his eligible dependents shall be eligible to
participate in the Company’s group medical, dental and vision plans in accordance with the terms of
such plans and, subject to the restrictions and limitations contained in the applicable insurance
agreement or agreements. The Company shall pay Employee up to $2,300 per year for medical expenses
that are not covered by the Company’s medical plan.
6. Other Benefits. Employee shall be eligible to participate in The Bon-Ton
Retirement Contribution Plan, deferred compensation plan, discount program, vacation plan,
long-term disability plan and employee benefit programs generally made available to other similarly
situated employees of the Company who were previously employed in the Northern Department Store
Group, including the Xxxxxx Xxxxx Xxxxx division (“Northern Department Store Group”) of Saks
Incorporated (“Saks”), subject to their respective generally applicable eligibility requirements,
terms, conditions and restrictions; provided however, that severance benefits under this Agreement
shall be in lieu of any severance benefits otherwise provided by the Company.
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Nothing in this
Agreement shall preclude the Company from amending or terminating any such
insurance, benefit, program or plan so long as the amendment or termination is applicable
generally to the Company’s executives participating in such insurance, benefit, program or plan.
Moreover, the Company’s obligations under this provision shall not apply to any insurance, benefit,
program or plan made available on an individual basis to one or more select executive employees by
contract if such insurance, benefit, program or plan is not made available to all executive
employees. With respect to Employee’s participation in the Company’s vacation plan, Employee shall
be eligible for 3 weeks vacation and 2 personal days per calendar year, which vacation entitlement
shall be pro-rated in any calendar year in which the Employee does not work the entire calendar
year.
7. Business Expenses. The Company shall pay or reimburse Employee for reasonable
entertainment and other expenses incurred by Employee in connection with the performance of
Employee’s duties under this Agreement upon receipt of vouchers therefore and in accordance with
the Company’s regular reimbursement procedures and practices in effect from time to time.
8. Termination of Employment.
(a) Termination by the Company. Notwithstanding any other provision of this
Agreement, the Company may terminate Employee’s employment and all of the Company’s obligations or
liabilities under this Agreement immediately, excluding any obligations the Company may have under
Paragraph 9 below, in any of the following circumstances:
(i) Disability or Incapacity. In the event of Employee’s physical or mental inability
to perform his essential duties hereunder, with or without reasonable accommodation, for a period
of 13 consecutive weeks or for a cumulative period of 26 weeks during the term of this Agreement.
(ii) Death of Employee. In the event of Employee’s death.
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(iii) Discharge for Cause. Company may discharge Employee at any time for “Cause,”
which shall be limited to: Employee’s material and serious breach or neglect of Employee’s
responsibilities; willful violation or disregard of standards of conduct established by law;
willful violation or disregard of standards of conduct established by Company policy as may from
time to time be communicated to Employee; fraud, willful misconduct, misappropriation of funds or
other dishonesty; conviction of a crime of moral turpitude; any misrepresentation made by Employee
in this Agreement; or any material breach by Employee of any provision of this Agreement
(including, without limitation, acceptance of employment with another company or performing work or
providing advice to another company, as an employee, consultant or in any other similar capacity
while still an employee of the Company).
(iv) Discharge without Cause. Notwithstanding any other provision of this Agreement,
Employee’s employment and any and all of the Company’s obligations under this Agreement (excluding
any obligations the Company may have under Paragraph 9 below) may be terminated by the Company at
any time without Cause.
(b) Resignation.
(i) Resignation for Good Reason. Employee may resign for “Good Reason,” defined
below, upon 30 days’ written notice by Employee to the Company except as set forth in Paragraph
8(c) below. The Company may waive Employee’s obligation to work during this 30 day notice period
and terminate his employment immediately, but if the Company takes this action in the absence of
agreement by Employee, Employee shall receive the salary that otherwise would be due through the
end of the notice period. For purposes of this Agreement, “Good Reason” shall mean any of the
following violations of this Agreement by the Company: causing Employee, without Employee’s
consent to cease to have duties and responsibilities
commensurate with those of Executive Vice President, CPS Stores; any reduction in the
Employee’s Base Salary;
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any reduction in the Employee’s potential bonus eligibility amount; any
required relocation from the Milwaukee, Wisconsin area; and any substantial breach of any material
provision of this Agreement. Notwithstanding the foregoing, the acts or omissions described above
shall not constitute “Good Reason” unless the Employee provides the Company with written notice
detailing the matters he asserts to be “Good Reason” that the Company does not cure within thirty
(30) days of receiving the written notice.
(ii) Resignation Without Good Reason. Notwithstanding any other provision of this
Agreement, Employee’s employment and any and all of the Company’s obligations under this Agreement
(excluding any obligations the Company may have under Paragraph 9 below) may be terminated by
Employee without Good Reason.
(c) Change of Control. In the event of a Change of Control of the Company, the
Employee shall be prohibited from resigning for Good Reason for a period of six months following
the Change of Control (unless Employee is required during this six (6) month period to relocate
from the Milwaukee, Wisconsin area). For purposes of this Agreement, a Change of Control shall be
deemed to occur if:
(i) any “person,” as such term is defined under Sections 3(a)(9) and 13(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), who is not an affiliate of Company on the
date hereof, becomes a “beneficial owner,” as such term is used in Rule 13d-3 under the Exchange
Act, of a majority of the outstanding voting power of the Company’s capital stock;
(ii) the Company adopts any plan of liquidation providing for the distribution of all or
substantially all of its assets;
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(iii) the Company is party to a merger, consolidation, other form of business combination or a
sale of all or substantially all of its assets, unless the business of the Company is continued
following any such transaction by a resulting entity (which may be, but need not be, the Company)
and the shareholders of the Company immediately prior to such transaction hold, directly or
indirectly immediately after such transaction, a majority of the voting power of the resulting
entity in substantially the same relative percentages as prior to such transaction.
9. Payments Upon Termination.
(a) Discharge Without Cause, or Resignation for Good Reason. If Employee is
Discharged Without Cause or Resigns for Good Reason, Employee shall receive severance pay at his
then current rate of Base Salary as of his termination, less taxes and normal deductions:
(i) if Employee is Discharged Without Cause, or Resigns for Good Reason, on or before March 4,
2008: seventy-eight (78) weeks in accordance with the Saks Incorporated Amended and Restated 2000
Change of Control and Material Transaction Severance Plan; or
(ii) if Employee is Discharged Without Cause, or Resigns for Good Reason, on or after March 5,
2008: fifty-two (52) weeks;
payable in equal installments in accordance with the Company’s regular payroll practices, provided
(whether the Discharge Without Cause or Resignation for Good Reason occurs before, on or after
March 4, 2008) that Employee signs and does not timely revoke a general release of claims
(including, without limitation, contractual, common law and statutory claims) against the Company
and its officers, directors, employees and agents in a form acceptable to the Company.
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These
severance payments shall be in lieu of any bonus or other Company paid benefits to which
Employee is or may be entitled after Employee’s termination of employment with the Company for any
reason whatsoever, whether by Employee or the Company, including any other severance payments to
which Employee is or may be entitled by reason of any severance plan sponsored by Saks or the
Company, or any other agreement, policy or practice. Employee will also have the opportunity for
continued participation in the Company’s group medical plans, at his expense, pursuant to COBRA.
The Company’s obligations under this Paragraph 9(a) shall, as applicable:
(iii) cease in the event that Employee breaches any of Employee’s obligations under this
Agreement; and/or
(iv) be offset by any disability insurance benefits and/or workers compensation benefits
received by Employee during the period covered by the severance payments.
(b) Death or Disability/Incapacity.
(i) On death, Employee’s estate’s sole entitlement will be to his then current rate of Base
Salary for any days worked prior to his death, amounts payable on account of Employee’s death under
any insurance or benefit plans or policies maintained by the Company, and any vested benefits to
which Employee is entitled under the Company’s employee benefit or other plans in accordance with,
to the extent provided in, and subject to the restrictions and payout schedules contained in those
plans.
(ii) On termination for disability or incapacity, Employee’s sole entitlement will be to his
then current rate of Base Salary for any days worked prior to the date of termination, amounts
payable on account of disability or incapacity under any insurance or benefit plans or policies
maintained by the Company and any vested benefits to which Employee
is entitled under the Company’s employee benefit or other plans in accordance with, to the
extent provided in, and subject to the restrictions and payout schedules contained in those plans.
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(c) Discharge for Cause or Resignation without Good Reason. If Employee is discharged
for Cause or resigns without Good Reason, Employee’s sole entitlement will be the receipt of his
then current rate of Base Salary for any days worked through the date of termination and any vested
benefits to which Employee is entitled under the Company’s employee benefit or other plans in
accordance with, to the extent provided in, and subject to the restrictions and payout schedules
contained in those plans.
(d) Change of Control. Notwithstanding any other provision of this Agreement, if the
aggregate present value of the “parachute payments” to the Employee, determined under Section
280G(b) of the Internal Revenue Code of 1986, as amended (the “Code”), would be at least three
times the “base amount” determined under Code Section 280G, then the “280G Permitted Payment” shall
be the maximum amount that may be paid as a Change of Control Payment under this Paragraph 9(d)
such that the aggregate present value of such “parachute payments” to the Employee is less than
three times his “base amount.” In addition, in the event the aggregate present value of the
parachute payments to the Employee would be at least three times his base amount even after a
reduction of the Change of Control Payment to $0 (all as determined for purposes of Code Section
280G), compensation otherwise payable under this Agreement and any other amount payable hereunder
or any other severance plan, program, policy or obligation of the Company or any other affiliate
thereof shall be reduced so that the aggregate present value of such parachute payments to the
Employee, as determined under Code Section 280G(b) is less than three times his base amount. Any
decisions regarding the
requirement or implementation of such reductions shall be made by such tax counsel as may be
selected by the Company and reasonably acceptable to the Employee.
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10. Company Property. All advertising, sales, manufacturers’ and other materials or
articles or information, including, without limitation, data processing reports, customer sales
analyses, invoices, price lists or information or any other materials or data of any kind furnished
to Employee by the Company or developed by Employee on behalf of the Company or at the Company’s
direction or for the Company’s use or otherwise in connection with Employee’s employment with the
Company, are and shall remain the sole and confidential property of the Company.
11. Non-Competition and Confidentiality. To the maximum extent permissible by law:
(a) During his employment with the Company and for a period of one year after the termination
of his employment with the Company for any reason whatsoever, whether by Employee or by the Company
and whether during the term of this Agreement or subsequent to the expiration or termination of
this Agreement, Employee shall not, directly or indirectly:
(i) Induce or intentionally influence any customer, employee, consultant, independent
contractor or supplier of the Company to change its business relationship with or terminate
employment with the Company.
(ii) Engage in (as a principal, partner, director, officer, agent, employee, consultant,
owner, independent contractor or otherwise) or be financially interested in the retail department
store business of any Competitor of the Company. For purposes of this Agreement, a Competitor
means each of Federated Department Stores, Xxxxxxx’x Inc., Xxxx’x
Corporation, Xxxx, Inc., Limited Brands, Inc., Target Corporation, Boscov’s, Inc., Sears
Holdings Corporation, X. X. Xxxxxx Company, Inc. or the affiliates and successors of each of them.
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(b) During his employment with the Company and at all times thereafter, and except as required
by law, Employee shall not use for his personal benefit, or disclose, communicate or divulge to, or
use for the direct or indirect benefit of, any person, firm, association or company other than the
Company, any Confidential Information (defined below) of the Company that Employee acquires in the
course of his employment, unless such Confidential Information is lawfully known by and readily
available to the general public, was received from a third party who was not under any restriction
to disclose such information, or is independently developed without the use of the Company’s
Confidential Information. This Confidential Information includes, but is not limited to: any
material referred to in Paragraph 10 or any non-public information regarding the business,
marketing, legal or accounting methods, policies, plans, procedures, strategies or techniques;
research or development projects or results; trade secrets or other knowledge or processes of or
developed by the Company; names and addresses of employees, suppliers or customers (“Confidential
Information”). Employee confirms that such information is confidential and constitutes the
exclusive property of the Company, and agrees that, immediately upon his termination, whether by
Employee or by the Company and whether during the term of this Agreement or subsequent to the
expiration of this Agreement, Employee shall deliver to Company all correspondence, documents,
books, records, lists, computer programs and other writings relating to Company’s business; and
Employee shall retain no copies, regardless of where or by whom said writings were kept or
prepared. Confidential Information includes such information of the Northern Department Store
Group that relates to business assets that were acquired by the Company from Saks.
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(c) Both during his employment with the Company and following his termination for any reason,
whether by Employee or by the Company and whether during the term of this Agreement or following
the expiration of the Agreement, Employee shall, upon reasonable notice, furnish to the Company
such information pertaining to his employment with the Company as may be in his possession. The
Company shall reimburse Employee for all reasonable expenses incurred by him in fulfilling his
obligations under this subparagraph (c).
(d) The provisions of subparagraphs (a), (b) and (c) shall survive the cessation of Employee’s
employment for any reason, as well as the expiration of this Agreement at the end of its term or at
any time prior thereto.
(e) Employee acknowledges that the restrictions contained in this Paragraph 11, in view of the
nature of the business in which the Company is engaged and the Employee’s position with the
Company, are reasonable and necessary to protect the legitimate interests of the Company, and that
any violation of those restrictions would result in irreparable injury to the Company. Employee
therefore agrees that, in the event of his violation of any of those restrictions, the Company
shall be entitled to obtain from any court of competent jurisdiction preliminary and permanent
injunctive relief against Employee, in addition to damages from Employee and an equitable
accounting of all commissions, earnings, profits and other benefits arising from such violation,
which rights shall be cumulative and in addition to any other rights or remedies to which the
Company may be entitled.
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(f) Employee agrees that if any or any portion of the foregoing covenants, or the application
thereof, is construed to be invalid or unenforceable, the remainder of such covenant or covenants
or the application thereof shall not be affected and the remaining covenant or covenants will then
be given full force and effect without regard to the invalid or
unenforceable portions. If any covenant is held to be unenforceable because of the area
covered, the duration thereof, or the scope thereof, Employee agrees that the Court making such
determination shall have the power to reduce the area and/or the duration, and/or limit the scope
thereof, and the covenant shall then be enforceable in its reduced form. If Employee violates any
of the restrictions contained in subparagraph (a), the period of such violation (from the
commencement of any such violation until such time as such violation shall be cured by Employee to
the satisfaction of the Company) shall not count toward or be included in the one year (or such
longer period as may be prescribed by such section) restrictive period contained in subparagraph
(a).
(g) Employee represents and warrants that the knowledge, skill and abilities he possesses at
the time of his execution of this Agreement are sufficient to permit him to earn a living by
working for a non-competitor of the Company for the restrictive period set forth in subparagraph
(a) above.
(h) For purposes of Paragraphs 10 and 11 of this Agreement, the term “Company” shall include
not only The Bon-Ton Stores, Inc., but also any of its successors, assigns, subsidiaries or
affiliates.
12. Taxes. Employee agrees that he is responsible for paying any and all federal,
state and local income taxes assessed with respect to any money, benefits or other consideration
received from the Company and that the Company is entitled to withhold any tax payments from
amounts otherwise due Employee to the extent required by applicable statutes, rulings or
regulations.
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13. Prior Agreements.
(a) Employee represents that there are no restrictions, agreements or understandings
whatsoever to which Employee is a party that could impact upon his employment under the Agreement
or would prevent or make unlawful his execution of this Agreement or his employment hereunder.
(b) Employee agrees that he will not use or disclose any confidential or proprietary
information of any of his prior employers during the course of his employment under this Agreement.
This prohibition does not apply to information of the Northern Department Store Group that relates
to business assets that were acquired by the Company from Saks, which information is subject to the
restrictions of Paragraph 11.
14. Indemnification. Employee shall be entitled to indemnification against claims by
third parties arising out of his acts and omissions within the scope of his employment pursuant to
the terms of the Company’s by-laws.
15. Entire Understanding. This Agreement contains the entire understanding between
the Company and Employee with respect to the subject matter hereof and supersedes all prior and
contemporary employment and severance agreements and understandings, inducements or conditions,
express or implied, written or oral, between the Company and Employee except as herein contained.
The express terms hereof control and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms hereof.
16. Modifications. This Agreement may not be modified orally but only by written
agreement signed by Employee and the Company’s Chief Executive Officer or such other person as the
Company’s Board of Directors may designate specifically for this purpose.
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17. Provisions Separable. The provisions of this Agreement are independent of and
separable from each other, and no provision shall be affected or rendered invalid or unenforceable
by virtue of the fact that for any reason any other or others of them may be invalid or
unenforceable in whole or in part.
18. Compliance With Code Section 409A.
(a) Notwithstanding anything to the contrary herein, no payment otherwise required to be made
hereunder that the Company determines constitutes a payment of nonqualified deferred compensation
for purposes of Section 409A of the Code shall be paid to Employee at a time or in a manner that
will be treated as a violation of the distribution rules of Code Section 409A(a)(2) and no
alternative form of payment of such amount(s) shall be permitted to be made hereunder if such
alternative benefit form would violate any of the requirements of Code Section 409A(a)(3) or (4)
relating to acceleration of benefits and changes in time and form of distribution (taking into
account any regulations or other guidance issued by Treasury or the Internal Revenue Service with
regard to these Code provisions as may be in effect from time to time).
(b) The intent of this provision is to ensure that no additional tax liabilities are imposed
on any payments or benefits provided hereunder pursuant to Code Section 409A, and may require, for
example, a delay in commencement of payments until six months after Employee’s termination of
employment with the Company. In the event any payment is delayed by reason of this Paragraph 18,
such payment shall, when made, be increased by an amount representing “interest” from the date
payment would otherwise have been made, through the date payment is actually made, calculated using
the Company’s cost of borrowing as the interest rate, as determined by the Company at its
discretion.
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19. Consolidation, Merger or Sale of Assets. Nothing in this Agreement shall preclude
the Company from consolidating or merging into or with, or transferring all or a substantial
portion of its assets to, another entity that assumes this Agreement and all obligations and
undertakings of the Company hereunder. Under such a consolidation, merger or transfer of assets
and assumption, the term “Company” as used herein, shall mean such other entity and this Agreement
shall continue in full force and effect.
20. Notices. All notices, requests, demands and other communications required or
permitted under this Agreement shall be in writing and shall be deemed to have been duly given,
made and received when delivered (personally, by courier service such as Federal Express, or by
messenger) or when deposited in the United States mails, registered or certified mail, postage
pre-paid, return receipt requested, addressed as set forth below:
| (a) | If to the Company: | ||
| The Bon-Ton Stores, Inc. 0000 Xxxx Xxxxxx Xxxxxx Xxxx, XX 00000 Attention: Chief Executive Officer |
|||
| with a copy to: | |||
| Xxxxx X. Xxxxxx, Esquire Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP 0000 Xxxx Xxxxxx 00xx Xxxxx Xxxxxxxxxxxx, XX 00000-0000 |
|||
| (b) | If to Employee: | ||
| Xxxxxxx Xxxxx 000 Xxx Xxxx Xxxxx Xx. Xxxxxxx, XX 00000 |
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In addition, notice by mail shall be by air mail if posted outside of the continental United
States. Any party may alter the address to which communications or copies are to be sent by giving
notice of such change of address in conformity with the provisions of this paragraph for the giving
of notice.
21. No Attachment. Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale, assignment, encumbrance,
charge, pledge, or hypothecation or to execution, attachment, levy or similar process or assignment
by operation of law, and any attempt, voluntary or involuntary, to effect any such action shall be
null, void and of no effect.
22. Binding Agreement. This Agreement shall be binding upon, and shall inure to the
benefit of the Company and its successors, representatives, and assigns and shall be binding upon
Employee, his heirs, executors and legal representatives.
23. Assignment by Employer. Employee consents to the assignment of this Agreement to
any purchaser of the Company or a substantial portion of its assets.
24. No Assignment by Employee. Employee acknowledges that the services to be rendered
by him are unique and personal. Accordingly, Employee may not assign or delegate any of his rights
or obligations hereunder, except that he may assign certain rights hereunder if agreed to in
writing by the Chief Executive Officer.
25. Indulgences. Neither the failure nor any delay on the part of either party to
exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude
any other or further exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect to any other
occurrence. No waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
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26. Paragraph Headings. The paragraph headings in this Agreement are for convenience
only; they form no part of this Agreement and shall not affect its interpretation.
27. Controlling Law. This Agreement and all questions relating to its validity,
interpretation, performance and enforcement, (including, without limitation, provisions concerning
limitations of actions), shall be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania, notwithstanding any conflict-of-laws doctrines of such state or any
other jurisdiction to the contrary, and without the aid of any canon, custom or rule of law
requiring construction against the draftsman.
28. Chief Employee Officer. In the absence of the President and Chief Executive
Officer, the decisions of the President and Chief Executive Officer hereunder may be made by such
other person as designated by the Company’s Board of Directors.
29. Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original against any party whose signature
appears thereon, and all of which shall together constitute one and the same instrument. This
Agreement shall become binding when any number of counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have duly
executed and delivered, in Pennsylvania, this Agreement as of the date first above written.
| THE BON-TON STORES, INC. | ||||||||
By:
|
/s/ XXXXX XXXXXXX | Date: 6/28/06 | ||||||
| Xxxxx Xxxxxxx Chief Executive Officer |
||||||||
| EMPLOYEE | ||||||||
| /s/ XXXXXXX XXXXX | Date: 6/28/06 | |||||||
| Xxxxxxx Xxxxx | ||||||||
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